Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELISABETH HABY, Case No.: 24-cv-0164-BJC-MMP 12 Plaintiff, ORDER:

13 v. (1) DENYING DEFENDANT’S 14 GREENSKY, LLC, MOTION FOR SUMMARY JUDGMENT, 15 Defendants.

16 (2) DENYING PLAINTIFF’S MOTION TO STRIKE AS MOOT, 17 AND 18 (3) DENYING DEFENDANT’S 19 MOTION TO STRIKE 20 DECLARATIONS 21 [ECF No. 62, 64, 68] 22 23 Pending before the Court is Defendant Greensky LLC’s Motion for Summary 24 Judgment. ECF No. 62. Plaintiff Elisabeth Haby (“Plaintiff”) filed a Motion to Strike 25 Testimony, ECF No. 64, and Defendant also filed a Motion to Strike Declarations. ECF 26 No. 68. The parties have filed oppositions and replies. The matter is submitted on the 27 briefs without oral argument. See Civ. L. R. 7.1(d)(1). For the reasons stated below, 28 Defendant’s Motion to Strike Declarations is DENIED, and Defendant’s Motion for 1 Summary Judgment is DENIED. Plaintiff’s Motion to Strike Testimony is DENIED as 2 moot. 3 I. FACTUAL BACKGROUND 4 In April 2022, Plaintiff sought a spa treatment from Revive Salon and Spa. ECF No. 5 67-1 at 2. Plaintiff obtained a loan from GreenSky with a credit limit of $6,000. Id. at 3. 6 Plaintiff authorized a transaction to Revive Salon and Spa for services rendered in the 7 amount of $4,800. Id. The loan was made pursuant to a promotion in which no interest 8 would be charged if the loan proceeds were fully repaid within 12 months. Id. 9 At some point, Plaintiff activated the GreenSky account’s auto pay feature, setting a 10 future automatic payment to Defendant on the loan and selected “statement balance” as the 11 withdrawal amount. Id. The parties, however, dispute the meaning of “statement balance.” 12 Plaintiff contends that “the terms of the loan provided for monthly payments and to the 13 extent that the online system showed the statement balance to be the entire balance owed 14 at the time, it was false and misleading.” Id. Defendants, by contrast, argue that the 15 “statement balance” was a reference to the full balance of the loan. Id. Accordingly, on 16 April 26, 2022, GreenSky automatically withdrew $4,800 from Plaintiff’s bank account, 17 representing the full amount of the loan. Id. Plaintiff brought this to GreenSky’s attention 18 and GreenSky issued a refund check to Plaintiff in the amount of $4,800. ECF No. 1 at 4; 19 ECF No 67-1 at 4. Thereafter, Defendant began debiting Plaintiff’s bank account in the 20 amount of $480 per month as Plaintiff requested. ECF No. 67-1 at 4. 21 On June 16, 2022, Plaintiff contacted Defendant and asserted that she did not receive 22 the $4,800 refund check she had requested. Id. Defendant then sent a second check to 23 Plaintiff in the amount of $4,800. Id. at 5. When the second check was sent, Defendant’s 24 representative did not void the first check, so there were two checks in the amount of $4,800 25 that remained outstanding. Id. In October 2023, Plaintiff contacted Defendant to complain 26 that she had not received either of the two checks that Defendant issues. Id. at 6. Defendant 27 informed Plaintiff that the second check has been cashed, and Plaintiff then acknowledged 28 that she remembered cashing the check. Id. at 6-7. 1 Critical to note, at some point, there were two outstanding checks to Plaintiff in the 2 amount of $4,800. Id. at 5. Defendant contends that, as a result of the two outstanding 3 checks, Plaintiff had a loan balance of $9,600.1 Id. Defendant, therefore continued 4 monthly debits of Plaintiff’s bank account after the $4,800 had been fully repaid. Id. 5 In November 2023, Defendant received a credit bureau dispute initiated by Plaintiff 6 that disputed the credit reporting on Plaintiff’s account with Defendant. Id. at 7. Plaintiff’s 7 complaint was that the credit reports stated that she has borrowed approximately $9,600 8 (the amount of the two refund checks sent by Defendant) rather than the $4,800 that was 9 originally owed, and therefore there was still an outstanding balance on her account. 10 After receiving Plaintiff’s dispute, Defendant instructed its employee, Marquios 11 Rossner, to conduct an investigation on Plaintiff’s account. Id. Rossner conducted the 12 investigation on December 7, 2023. Id. at 8. In conducting the investigation, Rosser 13 reviewed the transaction history and balance information in Defendant’s CORE credit 14 notes, then Rosser compared this information to the Automated Credit Dispute Verification 15 form submitted by credit reporting agencies. Id. 16 That is the extent to which the parties agree. The parties differ on the other parts of 17 Rossner’s investigation and the subsequent resolution of the account. According to 18 Plaintiff, on November 28, 2023, Greensky credited $4,800 to her account. Id. at 10. On 19 December 4, 2023, Defendant refunded the full amount of Plaintiff’s payments that were 20 in excess of $4,800. Id. On December 7, 2023, Rossner conducted his investigation. Id. 21 at 9. During his deposition, he testified that he “discovered that a refund of the $4,800 had 22 occurred, but verified the information as accurate anyway because “[the] system updates 23 automatically.” Id. at 8. Despite these actions, as of January 9, 2024, Plaintiff’s credit 24 reports continued to reflect an outstanding balance of $3,636. Id. at 10. 25 Defendant’s version differs. According to Defendant, Rossner conducted the 26 27 28 1 Plaintiff disputes this calculation, arguing that she never owed $9,600. Id. 1 investigation, and based on its results, Defendant reported to the credit reporting agencies 2 that the credit report was accurate. Id. at 9. Defendant contends that “[w]ithin several 3 weeks of this,” it discovered that the first $4,800 check issued to Plaintiff had not been 4 cancelled, which caused Plaintiff’s account to reflect a $9,600 balance. Id. After 5 Defendant discovered it had never stopped payment on the first $4,800 check, Defendant 6 cancelled that check in December 2023. Id. at 10. Defendant then claims to have promptly 7 refunded the full amount of Plaintiff’s payments that were in excess of $4,800. Id. 8 Defendant further maintains to have updated Plaintiff’s credit report status to show that her 9 account was paid in full and her remaining balance was zero. Id. 10 On January 23, 2024, Plaintiff filed the Complaint in this Court against GreenSky, 11 LLC, Equifax Information Services, LLC, Experian Information Solutions, Inc., and Trans 12 Union, LLC. ECF No. 1. On July 22, 2024, Plaintiff and Defendants Experian, Trans 13 Union, and Equifax filed a joint motion to dismiss the claims against only those defendants, 14 ECF No. 28, which the Court granted. ECF No. 29. 15 On June 20, 2025, Defendant GreenSky filed a motion for summary judgment. ECF 16 No. 62. Plaintiff filed a response, ECF No. 67, and Defendant filed a reply, ECF No. 69. 17 On July 11, 2025, Plaintiff also filed a motion to strike testimony, ECF No. 64, to which 18 Defendant filed a response, ECF No. 70. On July 18, 2025, Defendant filed a motion to 19 strike the declaration of Elisabeth Haby and Teresa Haby, ECF No. 68., and Plaintiff filed 20 a response. ECF No. 69. 21 II. LEGAL STANDARD 22 A. Motion to Strike 23 Under Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or 24 any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). 25 “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money 26 that must arise from litigating spurious issues by dispensing of those issues prior to trial.” 27 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Generally, motions 28 to strike are disfavored and are “not granted unless it is clear that the matter to be stricken 1 could have no possible bearing on the subject matter of the litigation.” LeDuc v. Kentucky 2 Central Life Ins. Co., 814 F.Supp. 820, 830 (N.D. Cal. 1992). 3 4 B. Motion for Summary Judgment 5 Summary judgment is appropriate under Rule 56(c) where the moving party 6 demonstrates the absence of a genuine issue of material fact and entitlement to judgment 7 as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 8 (1986). A fact is material when, under the governing substantive law, it could affect the 9 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute 10 about a material fact is genuine if “the evidence is such that a reasonable jury could return 11 a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. 12 The party seeking summary judgment bears the initial burden of establishing the 13 absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party 14 can satisfy this burden in two ways: (1) by presenting evidence that negates an essential 15 element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party 16 failed to make a showing sufficient to establish an element essential to that party’s case on 17 which that party will bear the burden of proof at trial. Id. at 322–23. 18 If the moving party fails to discharge this initial burden, summary judgment must be 19 denied, and the court need not consider the nonmoving party’s evidence. Adickes v. S.H. 20 Kress & Co., 398 U.S. 144, 160 (1970). If the moving party meets the initial burden, the 21 nonmoving party cannot defeat summary judgment merely by demonstrating “that there is 22 some metaphysical doubt as to the material facts.” Matsushita Elect. Indus. Co., Ltd. v 23 Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must “go 24 beyond the pleadings” and by “the depositions, answers to interrogatories, and admissions 25 on file,” designate “specific facts showing that there is a genuine issue for trial.” Celotex, 26 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). 27 The court must draw all inferences from the underlying facts in the light most 28 favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. “Credibility 1 determinations, the weighing of evidence, and the drawing of legitimate inferences from 2 the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion 3 for summary judgment.” Anderson, 477 U.S. at 255. 4 “[T]he district cour]t may limit its review to the documents submitted for the purpose 5 of summary judgment and those parts of the record specifically referenced therein.” 6 Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). The 7 court is not obligated “to scour the record in search of a genuine issue of triable fact.” 8 Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co. 9 of Am., 55 F.3d 247, 251 (7th Cir. 1995)). 10 III. DISCUSSION 11 A. Defendant’s Motions to Strike 12 Under Rule 56, “[a]n affidavit or declaration used to support or oppose a motion 13 must be made on personal knowledge, set out facts that would be admissible in evidence, 14 and show that the affiant or declarant is competent to testify on the matters stated.” Fed. 15 R. Civ. P. 56(c)(4). However, the rule “does not automatically dispose of every case in 16 which a contradictory affidavit is introduced to explain portions of earlier deposition 17 testimony . . . rather the district court must make a factual determination that the 18 contradiction was actually a ‘sham.’” Id. at 266–67. 19 Here, Defendant moves to strike the declarations of Plaintiff Elizabeth Haby and her 20 mother, Teresa Haby, arguing that both contain statements that contradict Plaintiff’s 21 pleadings and established facts in the case. Defendant identifies four alleged 22 contradictions. The Court finds none sufficient to warrant striking either declaration. 23 First, Defendant contends that Teresa Haby’s declaration improperly claims she 24 observed Plaintiff experiencing credit-related distress in 2022, despite Plaintiff alleging in 25 her Complaint that she did not become aware of the alleged credit-reporting issues until 26 October 2023. ECF No. 68 at 2. Defendant’s argument mischaracterizes Plaintiff’s 27 Complaint. Plaintiff alleges that “on or about April 26, 2022 GreenSky withdrew the 28 1 entirety of the $4,800 at once from Plaintiff’s bank account without Plaintiff’s consent. 2 Such a large sum caused Plaintiff’s account to be overdrawn.” ECF No. 1 at 4. Plaintiff 3 further alleges that in October 2023, she learned that Defendant reported on her credit that 4 she borrowed above her credit limit. Id. at 5. Thus, the Complaint identifies two separate 5 events: (1) a financial problem involving the $4,800 withdrawal in 2022 and (2) a credit- 6 reporting issue that Plaintiff discovered in 2023. Teresa Haby’s statement that she 7 observed Plaintiff “having problems in 2022” is consistent with the Complaint’s allegation 8 that Plaintiff experienced financial difficulties related to GreenSky in 2022. Accordingly, 9 the Court finds no direct contradiction between Teresa Haby’s declaration and Plaintiff’s 10 Complaint. Therefore, the Court declines to strike the declaration on this basis. 11 Second, Defendant argues that Plaintiff’s declaration improperly characterizes 12 Defendant’s conduct as having “stolen” $4,800 from her. ECF No. 68 at 3. Specifically, 13 Plaintiff states in her declaration, “[w]hen I discovered that GreenSky had been stealing 14 $480 from me monthly for a while I was shocked.” ECF No. 67-3 at 2. She further states 15 that “[a]fter I found out that GreenSky had been stealing money from me, it would take me 16 hours to fall asleep.” Id. In moving to strike the declaration, Defendant argues that the 17 record establishes that Plaintiff authorized a $4,800 automatic payment, Defendant 18 refunded the payment after Plaintiff disputed the amount, and Defendant thereafter 19 collected the $480 monthly payments requested by Plaintiff. ECF No. 68 at 3. 20 To the extent Plaintiff uses the term “stealing” as a legal characterization of 21 Defendant’s conduct, the Court disregards that characterization. See Persian Gulf Inc. v. 22 BP W. Coast Prods. LLC, 632 F. Supp. 3d 1108, 1131 (S.D. Cal. 2022) (holding that 23 “objections regarding improper legal conclusions . . . are unnecessary because the Court 24 only considers facts contained in declarations, not legal conclusions or argumentative 25 statements.”). However, the use of the term “stealing” does not render the entirety of 26 Plaintiff’s declaration inadmissible. Id. (“Where a paragraph containing an improper legal 27 conclusion is otherwise bookended by admissible statements, as is often the case here, the 28 Court has considered the admissible factual evidence but disregarded the improper legal 1 conclusions and argumentative statements.”) Plaintiff’s statements regarding the amounts 2 Defendant withdrew from her account, the duration of those withdrawals, and her reaction 3 upon learning of them concern underlying facts within her personal knowledge. 4 Accordingly, the Court disregards Plaintiff’s characterization of Defendant’s conduct as 5 “stealing,” but considers the admissible factual portions of her declaration. 6 Defendant’s next argument concerns paragraphs 18 and 21 of Plaintiff’s declaration, 7 in which Plaintiff describes emails she received from GreenSky. Plaintiff states, in relevant 8 part, that “[w]henever I received an email from GreenSky saying I have to pay this debt, I 9 would get angered and anxious again to the point that it would affect my sleep again and it 10 would again take me hours to fall asleep.” ECF No. 67-3 at 3. Plaintiff also states that 11 “[a]ttached . . . is a true and accurate copy of GreenSky’s email to me on May 15, 2025 12 still demanding payment from me on this debt.” Id. at 4. In moving to strike, Defendant 13 argues that Plaintiff’s account was paid in full and closed by December 2023; therefore, 14 there was no debt to be collected. ECF No. 68 at 4. Instead, Defendant contends that the 15 emails were sent because Plaintiff had not turned off the automatic withdrawal function of 16 her account. Id. 17 The Court finds that this Plaintiff’s declaration is supported by the Complaint. 18 Plaintiff alleged in the Complaint that “GreenSky violated 15 U.S.C. § 1692e by using 19 false, deceptive, and misleading representations in connection with the collection of 20 Plaintiff's alleged debt.” ECF No. 1 at 12. Plaintiff’s declaration is consistent with that 21 allegation because it describes communications that Plaintiff understood to demand 22 payment of the debt. Whether GreenSky’s emails were actually communications made in 23 connection with the collection of a debt is a disputed issue that goes to the merits of 24 Plaintiff’s claim. Accordingly, the Court declines to strike the challenged portions of 25 Plaintiff’s declaration. 26 Finally, Defendant takes issue with paragraph nine of Plaintiff’s declaration, where 27 Plaintiff states, “[s]tarting when I was in high school, I began caring about my credit. In 28 college, I actively began building my credit and . . . maintained good credit. I care deeply 1 about the accuracy of my credit and what is being reported on it.” ECF No. 67-3 at 2. 2 Defendant moves to strike this statement, arguing that in the Complaint, Plaintiff did not 3 specifically allege that she began caring for her credit in high school and that she cares 4 about the accuracy of her credit report. ECF No. 68 at 4. 5 Defendant’s argument is unavailing. Plaintiff’s illustration of how much she cared 6 about her credit score does not contradict the Complaint. Although Plaintiff’s description 7 might be self-serving, the Ninth Circuit has previously noted that “declarations are often 8 self-serving, and this is properly so because the party submitting it would use the 9 declaration to support his or her position.” Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 10 497 (9th Cir. 2015). Therefore, the Court declines to strike paragraph nine of Plaintiff’s 11 declaration. 12 In sum, Defendant has not shown that either declaration contradicts Plaintiff’s 13 Complaint. To the extent the declarations contain legal conclusions, the Court will 14 disregard those portions. Accordingly, Defendant’s Motion to Strike Declarations is 15 DENIED. 16 B. Motion for Summary Judgment 17 1. Private Right of Action Under the FCRA 18 In 1970, Congress enacted the Fair Credit Reporting Act (“FCRA”) “to ensure 19 accurate reporting about the ‘credit worthiness, credit standing, credit capacity, character, 20 and general reputation of consumers.’” Gross v. CitiMortgage, Inc., 33 F.4th 1246, 1250 21 (9th Cir. 2022) (quoting 15 U.S.C. § 1681(a)(2)). “Originally, the FCRA established duties 22 for consumer reporting agencies and users of consumer reports, but did not address the 23 requirements for furnishers of information.” Pirouzian v. SLM Corp., 396 F.Supp.2d 1124, 24 1127 (S.D.Cal., 2005). However, in 1996, Congress passed the Consumer Credit 25 Reporting Reform Act, which amended the FCRA by adding 15 U.S.C. § 1681s-2 and 26 imposing duties on furnishers of information. Id. 27 28 1 Section 1681s–2 delineates two categories of responsibilities on furnishers. 2 Under Subsection (a), furnishers have a duty “to provide accurate information” to 3 consumer reporting agencies (CRAs). 15 U.S.C. § 1681s–2(a)(3). Under Subsection (b), 4 furnishers have a duty, “upon notice of dispute” from a consumer reporting agency 5 (“CRA”), to investigate the disputed information, review relevant information provided by 6 the CRA, report the results of the investigation, and, where appropriate, modify, delete, or 7 permanently block the reporting of inaccurate or unverifiable information. 15 U.S.C. § 8 1681s-2(b)(1)(A)–(E). This duty arises “when a person who furnished information to a 9 CRA receives notice from the CRA that the consumer disputes the information.” Gorman 10 v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th Cir. 2009). 11 The same year that Congress passed the FCRA, the California Legislature passed 12 the California Consumer Credit Reporting Agencies Act (“CCRAA”), which “governed 13 credit rating reports that included consumer credit record and standing reports.” Parsonage 14 v. Wal-Mart Assocs., Inc., 118 Cal. App. 5th 399, 412 (2026), review denied (Apr. 29, 15 2026). The Act includes Section 1785.25, which “prohibits a person from ‘furnish[ing] 16 information on a specific transaction or experience to any consumer credit reporting agency 17 if the person knows or should know the information is incomplete or inaccurate.’” Hussey- 18 Head v. World Sav. & Loan Assn., 111 Cal. App. 4th 773, 780 (2003), as modified (Aug. 19 27, 2003) (quoting § 1785.25, subd. (a)). 20 Defendant argues that Plaintiff's FCRA claim fails because there is no private right 21 of action for violations of § 1681s-2(a). ECF No. 62 at 10. Defendant further argues that 22 “the FCRA expressly preempts all state statutory and common law causes of action against 23 furnishers of credit information.” Id. at 18. Therefore, Defendant avers that Plaintiff 24 cannot maintain a private claim under the CCRAA. Id. 25 26 2 “The most common . . . furnishers of information are credit card issuers, auto dealers, 27 department and grocery stores, lenders, utilities, insurers, collection agencies, and 28 government agencies.” H.R.Rep. No. 108–263, at 24 (2003). 1 Plaintiff responds that Defendant's argument is immaterial because Plaintiff has 2 properly asserted her FCRA claim under § 1681s-2(b), not § 1681s-2(a). ECF No. 67 at 3 10. Plaintiff maintains that she may pursue her claim under the CCRAA, pointing out that 4 the Ninth Circuit has previously held that the FCRA expressly exempts Cal. Civ. Code § 5 1785.25(a) from preemption. Id. at 10-11. 6 The Court agrees with Plaintiff. First, Plaintiff asserted her private right to action 7 under § 1681s-2(b). See ECF No. 1 at 6, 7, 9. Second, Plaintiff may maintain a private 8 right to action under Subsection (b). Gorman, 584 F.3d at 1154 (“The FCRA expressly 9 creates a private right of action for willful or negligent noncompliance with its 10 requirements . . . However, § 1681s–2 limits this private right of action to claims arising 11 under Subsection (b)) (citations and quotations omitted). 12 Furthermore, Subsection (b) is implicated here because Plaintiff notified the credit 13 reporting agencies of a dispute concerning the accuracy of the information GreenSky 14 furnished regarding her account, and GreenSky thereafter received notice of that dispute. 15 See ECF No. 67-1 at 7. Specifically, Plaintiff disputed the reporting that she had borrowed 16 approximately $9,600, reflecting the combined amount of the two $4,800 refund checks 17 issued by GreenSky, rather than the $4,800 she originally borrowed. Id. Under § 1681s- 18 2(b)(1), upon receiving notice of the dispute from the credit reporting agencies, GreenSky 19 was required to conduct an investigation, review the relevant information provided by the 20 credit reporting agency, report the results of its investigation, and, where appropriate, 21 modify, delete, or permanently block the reporting of information that was inaccurate or 22 could not be verified. 15 U.S.C. § 1681s-2(b)(1)(A)–(E). 23 Nor is Plaintiff’s parallel claim under California Civil Code § 1785.25(a) preempted 24 by the FCRA. Gorman, 584 F.3d at 1169 (holding that “the FCRA’s preemption provision, 25 expressly exempts [1785.25(a)] . . . from its general exclusion of state law claims on 26 matters governed by § 1681s-2.”). Thus, Plaintiff may pursue both her federal claim under 27 § 1681s-2(b) and her state-law claim under § 1785.25(a). Accordingly, the Court concludes 28 that Plaintiff may maintain a private right of action under § 1681s-2(b) and DENIES 1 Defendant’s motion for summary judgment on this issue. 2 3 2. FCRA and CCRAA 4 “Because the Credit Reporting Act is substantially based on the Federal Fair Credit 5 Reporting Act ... judicial interpretation of the federal provisions is persuasive authority and 6 entitled to substantial weight when interpreting the California provisions.” Olson v. Six 7 Rivers Nat'l Bank, 3 Cal. Rptr. 3d 301, 309 (Cal. Ct. App. 2003). The Court “operate[s] 8 under the assumption that California courts would interpret the FCRA and CCRAA 9 consistently.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 890 (9th Cir. 2010). 10 Because the parties brief the FRCA and CCRAA claims together, the Court likewise 11 addresses them together. 12 To succeed on her FCRA claim, Plaintiff must prove: “(1) Defendant is a ‘furnisher’; 13 (2) Plaintiff notified the CRA that Plaintiff disputed the reporting as inaccurate; (3) the 14 CRA notified the furnisher of the alleged inaccurate information of the dispute; (4) the 15 reporting was in fact inaccurate; and (5) Defendant failed to conduct the investigation 16 required by § 1681s-2(b)(1).” Gorman, 584 F.3d at 1155–57. Here, the parties’ do not 17 dispute the first, second, and third elements. The parties dispute the fourth and fifth 18 elements, with the primary dispute concerning the fifth element – whether Defendant 19 conducted a reasonable investigation. ECF No. 62 at 11; ECF No. 67 at 13. The Court, 20 therefore, turns to whether Defendant conducted a reasonable investigation under both the 21 FCRA and CCRAA. 22 a. Reasonableness of Defendant’s Investigation 23 To determine whether a furnisher’s investigation was reasonable, “[t]he pertinent 24 question is . . . whether the furnisher's procedures were reasonable in light of what it learned 25 about the nature of the dispute from the description in the CRA's notice of 26 dispute.” Gorman, 584 F.3d at 1157 (citation omitted). “[A]n “investigation” requires an 27 inquiry likely to turn up information about the underlying facts and positions of the parties, 28 not a cursory or sloppy review of the dispute.” Id. at 1155. The Ninth Circuit has also 1 emphasized that “summary judgment is generally an inappropriate way to decide questions 2 of reasonableness because ‘the jury's unique competence in applying the ‘reasonable man”’ 3 standard is thought ordinarily to preclude summary judgment.” Gorman, 584 F.3d at 4 1157 (quoting In re Software Toolworks Inc., 50 F.3d 615, 621 (9th Cir. 1994)). 5 A furnisher’s investigation may not be reasonable when it merely relies on its own 6 records without adequately addressing the substance of the consumer’s dispute. For 7 example, in Lara v. Experian Information Solutions, Inc., 625 F. Supp. 3d 1062 (S.D. Cal. 8 2022), the plaintiff alleged that a mortgage account was fraudulently opened in his name 9 through identity theft. Id. The mortgage lender reviewed its own loan-application file and 10 concluded that the account was legitimate. Id. at 1073. The Court denied summary 11 judgment, noting that the defendant had not presented evidence that its investigation 12 included any research beyond its own file, even though the plaintiff's dispute challenged 13 the validity of the underlying loan documents themselves. Id. 14 Defendant argues that it conducted a reasonable investigation of Plaintiff’s dispute. 15 ECF No. 62 at 11. Defendant’s employee, Marquios Rosser, reviewed the relevant 16 transaction and balance records and concluded that the reported balance was accurate. Id. 17 Defendant further argues that Plaintiff challenges only the result of the investigation, which 18 does not establish that the investigation itself was unreasonable. Id. at 12. 19 Plaintiff argues that Defendant’s investigation was unreasonable because it merely 20 compared the database information reported by the credit bureaus with the same 21 information in Defendant’s own records, without meaningfully investigating the substance 22 of Plaintiff’s dispute. ECF No. 67 at 14. Plaintiff contends that this amounted to 23 “rubberstamping” Defendant’s existing records rather than conducting the careful inquiry 24 required under the FCRA. Id. at 15. Plaintiff further argues that Defendant knew or should 25 have known the reported balance was inaccurate because its records showed that the 26 account balance was zero, yet Defendant still verified the information as accurate. Id. at 27 16. Thus, Plaintiff argues that whether Defendant’s investigation was reasonable presents 28 a factual question for the jury and precludes summary judgment. 1 The Court finds that summary judgment is inappropriate for deciding whether 2 Defendant acted reasonably in its investigation. In Lara, the plaintiff was not merely 3 challenging the loan application, but rather “the validity of the underlying mortgage and 4 loan file itself.” Id. Likewise, here, Plaintiff does not dispute that two $4,800 checks were 5 issued and remained outstanding; rather, she disputes the underlying circumstances, 6 namely, that “this was an error that should have never occurred and resulted from 7 Defendant not voiding the first refunded check.” ECF No. 67-1 at 6. Also, in Lara, the 8 defendant “[did] not present evidence to show its investigation included any research or 9 investigation outside of reviewing its own file.” Lara, 625 F. Supp. 3d at 1073. Here, 10 Rossner testified that when he conducted the investigation, he did not “call or e-mail 11 anyone at the accounting department” or “go outside of Greensky’s systems.” ECF No. 12 62-2 at 54. Thus, viewing the evidence in the light most favorable to Plaintiff, a reasonable 13 jury could find that Defendant’s review of its own records was insufficient to constitute a 14 reasonable investigation. Accordingly, because there is a genuine dispute of material fact, 15 Defendant’s motion for summary judgment on Plaintiff’s FCRA claim is DENIED. 16 3. Rosenthal Fair Debt Collection Practices Act 17 “Congress passed the FDCPA [Fair Debt Collection Practices Act] in 1977 with the 18 stated purposes of eliminating ‘abusive debt collection practices,’ ensuring ‘that those debt 19 collectors who refrain from using abusive debt collection practices are not competitively 20 disadvantaged,’ and promoting ‘consistent State action to protect consumers against debt 21 collection abuses.’” Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1207 (9th Cir. 22 2013) (citing 15 U.S.C. § 1692(e)). “California has adopted a state version of the FDCPA, 23 called the Rosenthal Act.” Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 24 2012) (citing Cal. Civ. Code § 1788 et seq.). “The Rosenthal Act mimics or incorporates 25 by reference the FDCPA's requirements, including [§ 1692e], and makes available the 26 FDCPA's remedies for violations.” Id. (citing Cal. Civ. Code § 1788.17). “To prevail on 27 a claim under the Rosenthal Act, a plaintiff must show that (1) the plaintiff is a debtor, (2) 28 the debt at issue is a consumer debt, (3) the defendant is a debt collector, and (4) that the 1 defendant violated one of the liability provisions of the Rosenthal Act.” Brown v. 2 EdFinancial Servs., LLC, No. 5:23-CV-01273-WLH-DTB, 2024 WL 3550479 *2 (C.D. 3 Cal. Jul. 9, 2024) (quoting Long v. Nationwide Legal File & Serve, Inc., 2013 WL 4 5219053, *17 (N.D. Cal. Sept. 17, 2013)). 5 Here, Plaintiff’s Rosenthal Act claims are premised on violations of 15 U.S.C. §§ 6 1692e and 1692f. ECF No. 1 at 12. Section 1692e states that “[a] debt collector may not 7 use any false, deceptive, or misleading representation or means in connection with the 8 collection of any debt.” 15 U.S.C. § 1692e. Similarly, Section 1692f states that “[a] debt 9 collector may not use unfair or unconscionable means to collect or attempt to collect any 10 debt.” 15 U.S.C. § 1692f. 11 The parties do not dispute the first, second, and third elements. Therefore, only the 12 fourth element, whether Defendant violated the Rosenthal Act, is at issue. In moving for 13 summary judgment, Defendant raises two issues: whether a reasonable jury could find that 14 (1) Defendant attempted to collect debt in violation of the Rosenthal Act, and, if so, (2) 15 Plaintiff suffered damages as a result of the violation. ECF No. 62 at 19, 21. 16 a. Debt Collection 17 In determining whether conduct violates the RFDCPA, the Court “undertake[s] an 18 objective analysis of the question whether the ‘least sophisticated debtor would likely be 19 misled by a communication.’” Stimpson v. Midland Credit Mgmt., Inc., 944 F.3d 1190, 20 1196 (9th Cir. 2019). Courts have found violations of the RFDCPA where debt collectors 21 attempted to collect amounts greater than actually owed. See Howard v. Patenaude & 22 Felix APC, 634 F. Supp. 3d 990 (W.D. Wash. 2022) (finding violations of the FDCPA 23 where the defendant sent a settlement letter and made telephone calls seeking payment of 24 a debt the plaintiff no longer owed). 25 The Court finds that a reasonable jury could conclude that Defendant engaged in 26 debt collection. By December 2023, Plaintiff’s account had been paid in full. See ECF 27 No. 62-2 at 75. However, until May 2025, Defendant continued sending Plaintiff monthly 28 emails demanding payment. ECF No. 67 at 25. In support, Plaintiff submitted a copy of 1 an email dated May 15, 2025, which, under the subject line “Notification for Payment 2 Skipped,” instructed Plaintiff to “login into your account via our portal 3 https://www.MyGreenSky.com to submit another payment to keep your account current.” 4 ECF No. 67-4 at 12. A reasonable jury could therefore conclude that Defendant’s emails 5 were intended to induce Plaintiff to make a payment and was thus made in connection with 6 the collection of a debt. Thus, viewing the evidence in the light most favorable to Plaintiff, 7 a reasonable jury could find that Defendant’s continued payment demands were misleading 8 and constituted an attempt to collect an amount that Plaintiff no longer owed, in violation 9 of the RFDCPA. 10 b. Damages 11 “Neither the Supreme Court nor the Ninth Circuit have announced a standard 12 applicable to emotional distress damages under the FDCPA.” Russell v. GC Servs. Ltd. 13 P'ship, 476 F. Supp. 3d 1097. 1102 (E.D. Wash. 2020). Therefore, “Courts in this circuit 14 are split on this issue.” Spradlin v. Mandarich L. Grp., LLP, No. 2:23-C- JCM, 2026 WL 15 608898, *4 (D. Nev. Mar. 4, 2026). 16 One view requires a plaintiff seeking emotional distress damages under the FDCPA 17 to satisfy the elements of an intentional infliction of emotional distress (“IIED”) claim 18 under applicable state law. Costa v. Nat'l Action Fin. Servs., 634 F. Supp. 2d 1069, 1078 19 (E.D. Cal. 2007). Under California law, an IIED claim requires: (1) extreme and 20 outrageous conduct by the defendant with the intention of causing, or reckless disregard of 21 the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme 22 emotional distress; (3) and actual and proximate causation of the emotional distress by the 23 defendant's outrageous conduct.” Hailey v. California Physicians’ Service 158 24 Cal.App.4th 452, 474 (2007). 25 The opposing view does not require a plaintiff to satisfy the elements of a state-law 26 tort. Instead, courts hold that a plaintiff seeking emotional distress damages under the 27 FDCPA satisfies the standard by “tendering evidence of his actual emotional distress, 28 without incorporating the state law’s tort elements.” Riley v. Giguiere, 631 F. Supp. 2d 1 1295, 1315 (E.D. Cal. 2009). A plaintiff may demonstrate actual emotional distress 2 ||through his or her testimony. Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir. 3 2003) (Stating that “testimony alone is enough to substantiate the jury's award of emotional 4 ||distress damages.”); Johnson v. Hale, 13 F.3d 1351, 1352 (9th Cir.1994) (stating that 5 emotional damages may be awarded based only on testimony or appropriate inference from 6 || circumstances). 7 Here, the Court applies the later standard and finds that a reasonable jury may find 8 Plaintiff suffered emotional distress. Both Plaintiff and her mother submitted 9 || declarations supporting Plaintiff's claims of experiencing “anxiety, frustration, anger, lack 10 ||of sleep, and nervousness.” ECF No. 1 at 8; Haby Decl., Exh. 24; 25; Teresa Haby 11 || Declaration, § 6]. Because a plaintiff’s testimony alone may support an award of emotional 12 distress damages, Plaintiff's testimony is sufficient to create a genuine dispute of material 13 as to whether she suffered actual emotional distress. Accordingly, Defendant is not 14 || entitled to summary judgment on Plaintiff's claim for emotional distress damages. 15 C. CONCLUSION 16 For the foregoing reasons, Defendant’s Motion to Strike Declarations is DENIED. 17 || ECF No. 68. Defendants’ Motion for Summary Judgment is also DENIED. ECF No. 62. 18 || Finally, Plaintiff's Motion to Strike Testimony is DENIED as MOOT. ECF No. 64. 19 IT IS SO ORDERED. 20 || Dated: September 21, 2026 21 23 24 Honorable Benjamin J. Cheeks United States District Judge 25 26 27 28 17 24-cv-0164-BJC-MMP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28